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Workers’ Rights: Should Undocumented Mean Uncompensated?

Posted on 06 March 2012 by admin

This article was written by Amanda Jaret, law student at St. John’s University, Class of 2013.

Editors Note: This article was written by Amanda Jaret, law student at St. John’s University, Class of 2013. It was the first place winner in the annual Writing Competition for Law Students sponsored by The College of Workers’ Compensation Lawyers. For more information about the CWCL, please visit their website at http://www.cwclawyers.org.

I’m shocked, shocked to find that gambling is going on in here!

–Captain Renault, Casablanca1

Studies analyzing available Census Bureau suggest that there are between 11 and 12 million undocumented immigrants within the United States.2 Approximately 8 million of those individuals are employed,3 and they generally “work in the construction, agriculture, manufacturing, and food preparation industries.”4 Although observers have argued that the immigrant workforce has deprived United States citizens of employment opportunities5 or even that these immigrants represent a threat to national security,6 the past decades have also suggested that many Americans tacitly condone these workers’ presence in the country.7 Indeed, the economy is now largely dependent on these workers’ contributions.8

Unfortunately, employers have massively exploited these undocumented workers who are desperate for gainful employment and willing to take extremely hazardous jobs.9 Because of the courts’ uncharitable interpretation of federal labor laws and workers’ fear of employer reprisal in the form of termination or deportation,10 there is little hope of legal intervention to correct the wrongs visited upon these workers.11 This exploitation has tangible manifestations; for instance, although workplace fatalities generally decreased between 1992 and 2002, “the number of fatalities for foreign-born workers increased by forty-six percent” within the same time period.12

Although many aspects of the discussion surrounding undocumented workers are already well-established, the legal framework governing the countless transactions that involve these individuals is not. 13 The cumulative effect of this uncertain patchwork of legal regulations and restrictions has been to place undocumented workers in an “ill-defined legal space” within which they are nominally protected by federal labor laws but lack the ability to claim the remedies they provide.14 Accordingly, one of the most challenging open questions in workers’ compensation (“WC”) law is whether and to what extent undocumented workers may receive WC benefits.15

Recently, the Fifth Circuit provided an answer to one facet of this problem in Bollinger Shipyards, Inc. v. Director of Workers’ Compensation.16 The court determined that an undocumented worker was entitled to receive WC benefits under the Longshore and Harbor Workers’ Compensation Act17 (“LHWCA”).18 Although many commentators found this decision controversial,19 the courts’ holding was nevertheless a narrow one.20

This note endorses the Fifth Circuit’s decision and offers an argument in favor of extending its rationale to ensure provision of workers’ compensation benefits to undocumented workers under other similar statutes. Part I identifies the statutory and case law background relevant to undocumented workers’ rights under federal labor laws. Part II situates the Fifth Circuit’s decision in Bollinger within this framework. Part III argues in favor of a broad reading of workers’ compensation statutes that is accommodating of undocumented workers’ benefits claims. Part IV concludes.

I. Background on Undocumented Workers’ Rights

The question of how to classify undocumented workers has proven to be a recurring puzzle for courts construing various statutes that are geared towards the protection of workers’ rights.21 Although courts have generally 3 employees” within the meaning of these statutes,22 the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB23 eroded the significance of prior holdings that locate undocumented workers within the ambit of federal labor laws.24 Hoffman Plastic Compounds rejected the argument that an undocumented worker who was unjustly terminated could receive back pay as a remedy under the National Labor Relations Act.25 The practical effect of this decision was the short-circuiting of undocumented workers’ ability to avail themselves of the legal remedies provided by labor laws despite their technical classification as statutory “employees.”26

Not only must courts attempting to determine undocumented workers’ rights contend with ambiguous statutory language27 and challenging policy questions,28 issues involving undocumented workers likewise implicate sensitive questions of federalism and preemption.29 Specifically, this process is complicated by the Immigration Reform and Control Act of 1986 (IRCA),30 which places an obligation on employers to verify that their workers possess the necessary documentation to work legally in the United States.31 The statute makes it illegal for employers “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.”32 Because Congress determined that the availability of jobs was one of the primary attractions for immigrants, it decided that “penalizing employers would deter the hiring of undocumented workers and, as a result, curb illegal immigration.”33 Employers generally argue that the IRCA preempts state workers’ compensation statutes as to their application to undocumented workers because the statute reflects a congressional intent to enforce immigration policy at the federal level.34

Given this complex federal interpretive backdrop, states’ decisions with respect to workers’ compensation are made substantially more complicated.35 WC benefits normally accrue to any individual who meets the state legislature’s definition of “employee.”36 Because the definition of “employee” is the predicate for a worker’s eligibility for WC benefits,37 determining whether undocumented workers are embraced by the statutory concept of “employee” as conceived by each state legislature is paramount.38 Such an employee ordinarily must only prove that she was injured during the course of her employment to qualify for benefits under these statutes.39 WC was conceived as “an administrative remedy designed to speed an employee’s compensation while insulating both the employer and the employee from the costs and delays inherent in purely judicial adversarial positions. 40 Accordingly, the availability of a WC remedy forecloses the possibility of pursuing a tort action against an employer for the same injury.41

II. The Fifth Circuit’s Bollinger Decision

Bollinger evaluated the parameters of the term “employee” within the context of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 42 an interesting exception to the panoply of state-sponsored WC schemes.43 Not only did the Constitution invest federal courts with power over “all Cases of admiralty and maritime Jurisdiction,”44 it is also well-established that federal legislation pertaining to admiralty should pre-empt analogous state laws because of the interstate and international implications of maritime commerce.45

Accordingly, this Act provided a rare opportunity for a federal court to construe a workers’ compensation statute vis-à-vis an undocumented worker.46 The LHWCA “provides workers’ compensation benefits to ‘employees’ who are injured ‘upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing dismantling, or building a vessel).’”47 The statute defines an “employee” as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations.”48 On the facts presented to the court, Bollinger Shipyards had employed Jorge Rodriguez, an undocumented immigrant, who fell and injured himself while performing a welding job within the scope of his work for the company as a pipefitter.49 The employer argued that “by virtue of Rodriguez’s undocumented status and his use of a false Social Security number to obtain employment, he should be precluded from recovering any LHWCA-related benefits.”50

The court’s first task, therefore, was to determine whether the definition for “employee” given in the LHWCA also covered undocumented workers who were engaged in maritime employment.51 The Fifth Circuit found it notable that while the statute “contains several limited exceptions to this definition . . . each exception is based on an individual’s job description and makes no reference to the individual’s immigration status.”52 As the Court held with respect to the coverage of undocumented workers under the NLRA in Sure-Tan,53 the Fifth Circuit felt persuaded that these workers fell within the ambit of the statutory language because an undocumented worker is nevertheless “any person”54 as the statute uses that term.55

The inclusion of a provision in the LHWCA affording benefits to “aliens”56 also persuaded the Fifth Circuit that its analysis was correct despite the statute’s failure to distinguish between lawful resident aliens and undocumented ones.57 Because several state courts construing similar statutes reached the same conclusion,58 the Fifth Circuit felt confident concluding that “[a]lthough the statute does not expressly define the term ‘alien’ and makes no reference to ‘illegal’ or ‘undocumented’ immigrants, its coverage of nonresident ‘aliens’” was dispositive.59 This was also consistent with prior circuit precedent.60

The Fifth Circuit did not find the IRCA controlling as to the specific question of whether Rodriguez was entitled to collect WC benefits.61 The court explained that although a thorough review of the IRCA was warranted, there was no basis in the record for a finding that the award of WC benefits to Rodriguez would “undermine[ ] the congressional policies embedded in the IRCA.”62 Although the court conceded that Rodriguez violated the IRCA by tendering a false Social Security number to gain employment with Bollinger, it maintained that the relevant issue was “whether that violation precludes his eligibility to receive workers’ compensation benefits under the LHWCA,” not whether his action constituted a crime under the IRCA.63

After concluding that IRCA did not entirely preempt the analysis of the WC issue before it, the Fifth Circuit examined the line of cases culminating in Hoffman Plastic Compounds.64 It concluded that Hoffman was distinguishable for three reasons.65 First, unlike back pay under the NLRA, WC benefits are not a discretionary remedy under the LHWCA.66 Next, the court explained that the LHWCA envisioned the WC scheme as a quid pro quo for workers forgoing their tort claims against employers.67 Because existing circuit precedent authorized undocumented workers to maintain tort actions against employers, this rationale could be extended to permit them to receive WC benefits in lieu of bringing such claims.68 Finally, because the LHWCA expressly provide for benefits for “aliens,” the court contended that awarding benefits would not, in the words of the Hoffman Court, “unduly trench upon explicit statutory prohibitions critical to federal immigration policy.”69

The court’s decision to look beyond Hoffman reflected many state courts’ belief that “the Hoffman opinion did not expressly preclude states from awarding workers’ compensation benefits to unauthorized aliens.”70 Hoffman rested in part on the presumption that back pay could not be awarded unless a worker mitigated her damages by seeking other employment, something that an undocumented worker could not do without “triggering new IRCA violations, either by tendering false documents to employers or by finding employers willing to ignore IRCA and hire illegal workers.”71 Because the Fifth Circuit found that prong of the analysis inapposite in the WC context which does not have a parallel mitigation requirement and which instead functions merely to compensate workers for injuries incurred, it rejected Bollinger’s analogy to Hoffman.72 Finally, because the Fifth Circuit deferred to the ALJ’s factfinding, the employer’s petition for review was denied and Rodriguez was held to be entitled to WC benefits.73

III. Undocumented Workers Should Be Entitled to WC Benefits

This Note argues that the Fifth Circuit reached the correct result in Bollinger and that its rationale should be extended to other federal and state WC statutes. There are numerous reasons why extending this holding would be appropriate as a matter of law and policy. As a matter of law, WC benefits are ordinarily extended to anyone who qualifies “as an employee based on the statutory definition drafted by the respective state legislature.”74 Most of these state statutes are drafted in a very broad fashion and extend benefits to all “individuals” or “persons,” and many of them also expressly include “aliens.”75 This permits courts to interpret them as including undocumented workers under traditional methods of statutory interpretation.76 Accordingly, there is no reason to rely on a crabbed reading of the word “employee” in making further determinations about the scope of WC statutes.77

As another threshold matter, the IRCA should not be held to preempt state legislatures from awarding undocumented workers WC benefits.78 A federal statute should only be held to preempt state law when Congress has (1) expressly defined the extent of preemption; (2) regulated an area so pervasively that an intent to preempt the entire field may be inferred; and (3) has enacted a law that directly conflicts with state law.79 Although the “the IRCA was meant to prevent employers from willfully hiring illegal immigrants . . . the statute failed to expressly or impliedly preempt the authority of the states to award workers’ compensation benefits to undocumented workers.”80 It did not expressly define the extent of preemption or regulate the entire area of compensation for injuries incurred at work. As a result of these omissions, state courts have been able effectively to argue that there is no conflict between the IRCA and state statutory WC schemes, thereby sidestepping the preemption issue entirely.81 This is the same analytical move that the court in Bollinger made when it rejected the employer’s argument that the IRCA preempted the WC claim.82

Just as the Fifth Circuit recognized in Bollinger, Hoffman Plastic Compounds should not be read as direct authority when legislation provides for mandatory as opposed to discretionary remedies. Unlike back pay, workers’ compensation is more analogous to a tort remedy than a contract recovery. While Hoffman cautions against awarding “back pay wage benefits that illegal aliens could not have earned at work”83 legally,84 as the court in Bollinger recognized, WC benefits differ in a material way from back way benefits because they are mandatory remedies.85 This is analogous to the way courts have treated recovery under the FLSA. Courts have declined to extend the holding of Hoffman to prevent undocumented workers from receiving back pay under the Fair Labor Standards Act.86 The argument in favor of distinguishing Hoffman is even stronger in the WC context than with respect to the FLSA “because Hoffman applied only to wage benefits.”87 If courts are willing to allow undocumented workers to recover wage benefits under the FLSA, it seems even easier to justify providing WC benefits.

Additionally, courts have not found Hoffman Plastic Compounds controlling when statutes are intended to combat employers’ “abusive or discriminatory practices.”88 When the Ninth Circuit was presented with workers’ challenge to an employer’s discriminatory practices under Title VII of the Civil Rights Act of 1964, it refused to allow the employer to use their immigration status to bar their claims.89 The court considered the importance of enforcing Title VII through private parties acting as private attorneys general to be eminent and indicated that the provision for attorneys’ fees contained in the statutory scheme was dispositive as to congressional intent to preserve as many claims as possible to ensure promotion of the statute’s goals.90 In the LHWCA, there is also a section providing successful claimants with a reasonable attorney’s fee if they need to enforce their workers’ compensation claims against their employers in court.91

There is good reason to restrict the scope of the IRCA as a matter of policy. Although Congress’s reasoning in enacting the IRCA seemed prudent at the time the statute was adopted, in practice it has become evident to many commentators that this system allows and perhaps even encourages unscrupulous employers to turn a blind eye to their employees’ immigration status.92 This is because the statute only proscribes knowing hiring of undocumented workers.93 Employers’ good faith attempts at compliances with IRCA’s strictures thus functions as an affirmative defense to liability.94 The net effect of this process is counterproductive;95 rather than deterring migration, IRCA and the Court’s decision in Hoffman actually create incentives for immigrants to seek jobs with these same unscrupulous employers who are willing to hire “with a wink and a nod” undocumented workers with the knowledge that they will not have to pay them remedies for violations of the federal labor laws.96 On a policy level, it is also important to extend WC benefits to undocumented workers as a matter of fundamental fairness.97 Although some try to deny or minimize the fact that “many present undocumented immigrants contribute actively to our economy,”98 it remains the case that these workers provide necessary services while working in the most dangerous and low-paying jobs in the United States.99

One criticism of this policy would suggest that the provision of WC benefits to undocumented workers would disserve the goals of national immigration law. Because “it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies,”100 proponents of this argument would contend that no one should benefit from violating federal law and that allowing undocumented workers to receive WC benefits only encourages more unlawfulness.101 There is little practical reason to believe that court holdings with respect to provision of benefits would actually affect an individual’s decision to migrate to the United States illegally, however.102

Anyone who is injured at work should have the right to some kind of remedy. The circumstances under which someone came to be employed are less significant than the fact of a breach for which the employer is nevertheless liable. Moreover, to claim that an employer is guiltless in hiring an undocumented worker is rarely tenable. Just like Captain Renault’s feigned shock about the gambling he himself was profiting from in the film Casablanca,103 many employers gladly benefit from immigrant labor and then attempt to affect indignation when it serves their purposes later.104 The law should not countenance this kind of charade.

Another criticism of this approach questions the desirability of workers’ compensation coverage. This argument suggests that workers would be better off pursuing tort remedies like “personal injury, wrongful death, and wrongful discharge” against their employers because they could achieve better results and more substantial monetary awards.105 Although some have criticized WC as a system because it potentially deprives some injured workers from collecting the more substantial damages awards they could receive in a jury trial if they had a cause of action sounding in tort,106 this critique lacks some salience in the context of undocumented workers’ rights since they would be unlikely to pursue their claims in court even if that were an available option.107

IV. Conclusion

As the status of undocumented workers’ legal rights to receive WC benefits remains unsettled, so too does their health and future. The importance of resolving this dilemma and ensuring that undocumented does not mean uncompensated is paramount. Employers have been able to use the specter of an uncertain legal landscape to dissuade undocumented workers from pursuing their legitimate claims for work-related injuries by threatening retaliation on the job or deportation.108 This is inappropriate and exploitative. The Fifth Circuit’s decision in Bollinger Shipyards, Inc. v. Director of Workers’ Compensation109 represents an appropriate strategy for courts to employ in balancing the competing interests in protecting workers’ rights and enforcing national immigration policy. As more states are faced with similar challenges in the coming years, an approach similar to that employed in Bollinger would best serve the needs of some of the most exploited workers in the American economy while not materially reducing the efficacy of immigration law enforcement.

 

1 Casablanca (Warner Bros. 1942).

2 See, e.g., Pew Hispanic Ctr., Estimates of the Unauthorized Migrant Population for States Based on the March 2005 CPS, available at http:// pewhispanic.org/files/factsheets/17.pdf. See also Steven A. Camarota & Karen Jensenius, Ctr. for Immigration Studies, A Shifting Tide: Recent Trends in the Illegal Immigrant Population (2009), available at http:// www.cis.org/articles/2009/shiftingtide.pdf (arguing that the number of undocumented immigrants is slightly less than 11 million).

3 Camarota & Jensenius, supra note 2.

4 Roxana Mondragón, Injured Undocumented Workers and Their Workplace Rights: Advocating for a Retaliation Per Se Rule, 44 COLUM. J.L. & SOC. PROBS. 447, 448 (2011).

5 See, e.g., Donald L. Barlett & James B. Steele, Who Left the Door Open?, TIME MAGAZINE, Sept. 20, 2004, at 51.

6 See Steven W. Bender, Sight, Sound, and Stereotype: The War on Terrorism and Its Consequences for Latinas/os, 81 OR. L. REV. 1153, 1154 (2002) (criticizing the prevailing sentiment that “undocumented immigrants are now seen as a national security threat, as would-be terrorists.”).

7 Maria Elena Bickerton, Note, Prospects for a Bilateral Immigration Agreement with Mexico: Lessons from the Bracero Program, 79 TEX. L. REV. 895, 907 (2001).

8 See Megan L. Capasso, An Attempt at a “12-Step Program”: President Bush’s Comprehensive Strategy to Rehabilitate California and Mexico’s Addiction to Illegal Immigration: Does It Strike the Correct Societal Balance?, 34 W. St. U. L. Rev. 87, 88 (2006) (characterizing companies’ dependence on undocumented labor as a cost-cutting mechanism as a drug addiction).

9 See Mondragón, supra note 4, at 448-49.

10 See Rivera v. Nibco, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) (“Many of these workers are willing to work for substandard wages in our economy’s most undesirable jobs . . . undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution.”).

11 Oliver T. Beatty, Workers’ Compensation and Hoffman Plastic: Pandora’s Undocumented Box, 55 ST. LOUIS U. L.J. 1211, 1213 (2011).

12 Mondragón, supra note 4, at 450.

13 For a thorough discussion of this hodgepodge of regulations, see infra Part I.

14 Scott C. Murray, Note, Hoffman, Its Progeny, And the Status of Undocumented Workers, 11 WYO. L. REV. 615, 616 (2011).

15 See Gregory T. Presmanes & Seth Eisenberg, Hazardous Condition: The Status of Illegal Immigrants and Their Entitlement to Workers’ Compensation Benefits, 43 TORT TRIAL & INS. PRAC. L.J. 247, 248 (2008).

recognized that undocumented workers constitute

16 604 F.3d 864 (5th Cir. 2010).

17 See 33 U.S.C. § 903 (1996).

18 Bollinger, 604 F.3d at 867.

19 See, e.g. Michael J. Daly, Timothy W. Hassinger, Christopher Nolan, Scott Richards & Laurie Sands, Recent Developments in Admiralty and Maritime Law, 46 TORT TRIAL & INS. PRAC. L.J. 135, 157 (2011).

20 Bollinger, 604 F.3d at 879 (cabining the scope of the holding to a review of how the LHWCA should be interpreted based on controlling Supreme Court and Fifth Circuit precedent).

21 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) (recognizing that undocumented workers are covered by the NLRA); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (applying the Fair Labor Standards Act to undocumented workers).

22 See, e.g., Sure-Tan, 467 U.S. 883, 892 (“Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’”).

23 535 U.S. 137 (2002).

24 Mondragon, supra note 4, at 451.

25 Id. at 151.

26 Murray, supra note 14, at 616.

27 Many federal labor statutes unhelpfully describe an “employee” as “any individual employed by an employer,” requiring substantial judge intervention and interpretation. See, e.g., 29 U.S.C. § 152(3) (2006) (National Labor Relations Act); 29 U.S.C. § 203(e)(1) (2006) (Fair Labor Standards Act); 29 U.S.C. § 1002(6) (2007) (ERISA).

28 Cf. Daly, et. al, supra note 18, at 157.

29 See Presmanes & Eisenberg, supra note 15, at 248-49.

30 8 U.S.C. §1324a (2006).

31 Joseph D. Layne, Note, Fighting a Losing Battle: IRCA’s Negative Effect on Law-Abiding Employers, 44 Loy. L.A. L. Rev. 1431, 1439 (2011).

32 8 U.S.C. §1324a(a)(1).

33 Id. at 1439-40.

34 Presmanes & Eisenberg, supra note 15, at 248.

35 Id.

36 Id.

37 Id. at 250 (“[P]eople who qualify as employees based on the statutory definition drafted by the respective state legislature are eligible for workers’ compensation benefits, and illegal immigrants can be designated as employees and thus be eligible for benefits.”).

38 Mondragón, supra note 4, at 456-57.

39 Beatty, supra note 11, at 1220-21.

40 Presmanes & Eisenberg, supra note 15, at 248 (quoting Marjorie A. Shields, Annotation, Application of Workers’ Compensation Laws to Illegal Aliens, 121 A.L.R. 5th 523 (2004)).

41 For a response to the argument that this trade-off strikes an insufficiently protective balance for workers’ interests, see infra Part III.

42 See 33 U.S.C. § 903 (1996).

43 Bollinger Shipyards, Inc. v. Dir., Office of Workers’ Comp. Programs, 604 F.3d 864 (5th Cir. 2010).

44 See U.S. CONST. Art. III, § 2, cl. 1. See 28 U.S.C. § 1333(1) (vesting federal district courts with original jurisdiction as to “[a]ny civil case of admiralty or maritime jurisdiction.”).

45 See, e.g., Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 144 (1928) (holding that an analogous federal workers’ compensation scheme for maritime workers preempted a similar state law due to the need for uniformity in maritime matters because of the international and interstate ramifications of such industries).

46 Bollinger, 604 F.3d at 872.

47 Id. (quoting 33 U.S.C. 903(a)).

48 33 U.S.C. § 902(3).

49 Bollinger, 604 F.3d at 867.

50 Id.

51 Id. at 872.

52 Id.

53 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).

54 33 U.S.C. § 902(3).

55 Bollinger, 604 F.3d at 872.

56 33 U.S.C. § 909(g).

57 Bollinger, 604 F.3d at 872.

58 See, e.g., Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329 (Minn. 2003); Economy Packing Co. v. Ill. Workers’ Comp. Comm’n, 901 N.E.2d 915, 920 (Ill. App. 2008).

59 Bollinger, 604 F.3d at 872.

60 See Hernandez v. M/V Rajaan, 841 F.2d 582 (5th Cir. 1988) (allowing an undocumented worker to maintain a tort action under a different provision within the LHWCA).

61 Bollinger, 604 F.3d at 874.

62 Id.

63 Id.

64 Id. at 875-77.

65 Id. at 877.

66 Id. Under the terms of the LHWCA, WC benefits are mandatory and not discretionary because the statute explains that “compensation shall be payable under this chapter in respect of disability or death of an employee.” 33 U.S.C. § 903(a) (emphasis added).

67 Id. at 878.

68 Id.

69 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

70 Presmanes & Eisenberg, supra note 15, at 250.

71 Hoffman, 535 U.S. at 152.

72 Bollinger, 604 F.3d at 879.

73 Id. at 880.

74 Presmanes & Eisenberg, supra note 15, at 248.

75 Mondragón, supra note 4, at 456-57 (“[A] majority of states’ workers’ compensation laws include ‘alien’ in the definition of covered employees; while other statutes apply generally to all ‘individuals’ or ‘persons.’ Only one state, Wyoming, has explicitly excluded undocumented workers from receiving workers’ compensation in its statute.”).

76 See Bollinger, 604 F.3d at 872.

77 See Mondragón, supra note 4, at 456-57.

78 See Beatty, supra note 11, at 1233-34.

79 See, e.g., Wet Walls, Inc. v. Ledezma, 593 S.E.2d 60, 63 (Ga. Ct. App. 2004).

80 Presmanes & Eisenberg, supra note 15, at 251.

81 Id. at 253.

82 See Bollinger, 604 F.3d at 874.

83 Presmanes & Eisenberg, supra note 15, at 253.

84 Hoffman Plastic Compounds, 535 U.S. at 150 (warning that an employee can only qualify for an award of back pay by remaining in the United States illegally).

85 Bollinger, 604 F.3d at 874.

86 See, e.g., Flores v. Amigon, 233 F. Supp. 2d 462, 464-65 (E.D.N.Y. 2002); Flores v. Albertsons, Inc., 2002 WL 1163623, *1, *5 (C.D. Cal. Apr. 9, 2002).

87 Presmanes & Eisenberg, supra note 15, at 248-49.

88 Rivera v. Nibco, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004).

89 Id.

90 Id.

91 33 U.S.C. § 928 (1996).

92 See, e.g., Layne, supra note 31, at 1449-50 (“Hoffman . . . counteracts IRCA by creating an incentive for unscrupulous employers to seek out and hire undocumented workers because the employers are exposed to less liability by doing so.”); Beatty, supra note 11, at 1226.

93 See 8 U.S.C. § 1324a(a)(1).

94 Id. at 1453.

95 See Layne, supra note 31, at 1449-50.

96 See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 156 (2002) (Breyer, J., dissenting) (“[T]he incentive may prove significant . . . to hire with a wink and a nod those potentially unlawful aliens whose unlawful employment (given the Court’s views) ultimately will lower the costs of labor law violations.”).

97 Beatty, supra note 11, at 1242 (“[P]recluding the workers’ recovery inflicts collateral damage upon the U.S. economy and legitimately creates a twenty-first century class of disposable peasant workers.”).

98 Id. at 1212.

99 Mondragón, supra note 4, at 447.

100 Hoffman, 535 U.S. at 148.

101 Id. at 150 (explaining that awarding benefits when someone has violated the IRCA “not only trivializes the immigration laws, it also condones and encourages future violations.”).

102 Id. at 155 (Breyer, J., dissenting) (“To permit the Board to award backpay could not significantly increase the strength of this magnetic force, for so speculative a future possibility could not realistically influence an individual’s decision to migrate illegally.”).

103 Casablanca (Warner Bros. 1942).

104 Hoffman, 535 U.S. at

105 Mondragón, supra note 4, at 455.

106 See Beatty, supra note 11, at 1222-23.

107 Mondragón, supra note 4, at 455 (“However, suing in tort is generally ‘untenable for undocumented workers who often lack the resources to instigate litigation, have limited English proficiency, and fear the immigration consequences of appearing in court.’”) (quoting Brief for the New Orleans Workers’ Center for Racial Justice et al. as Amici Curiae Supporting Respondents at *11-12, Bollinger Shipyards, Inc. v. Rodriguez, 604 F.3d 864 (5th Cir. 2010) (No. 09-60095), 2009 WL 6706826).

108 Id. at 480.

109 604 F.3d 864 (5th Cir. 2010).

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